Case Information
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JOHN DOE, et al., Case No. 21-cv-00485-JCS Plaintiffs,
v. ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FIRST AMENDED TWITTER, INC., COMPLAINT Defendant. Re: Dkt. No. 48 I. INTRODUCTION
Plaintiffs John Doe #1 and John Doe #2 allege that when they were thirteen years old they were solicited and recruited for sex trafficking and manipulated into providing to a third-party sex trafficker pornographic videos (“the Videos”) of themselves through the social media platform Snapchat. A few years later, when Plaintiffs were still in high school, links to the Videos were
posted on Twitter. Plaintiffs allege that when they learned of the posts, they informed law enforcement and urgently requested that Twitter remove them but Twitter initially refused to do so, allowing the posts to remain on Twitter, where they accrued more than 167,000 views and 2,223 retweets. According to Plaintiffs, it wasn’t until the mother of one of the boys contacted an agent of the Department of Homeland Security, who initiated contact with Twitter and requested the removal of the material, that Twitter finally took down the posts, nine days later.
Plaintiffs assert state and federal claims against Twitter based on its alleged involvement in and/or enabling of sex trafficking and the distribution of the child pornography containing their images. Twitter, however, contends that even after Congress’s enactment of the Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act in 2018, the conduct alleged by Plaintiffs is shielded from liability under Section 230 of the Communications Decency Act (“CDA”). Thus, Twitter brings a Motion to Dismiss First Amended Complaint (“Motion”) seeking dismissal of all of Plaintiffs’ claims on the basis that it is immune from liability under the CDA. In the Motion, Twitter also contends Plaintiffs fail to state viable claims as to many of their claims. A hearing on the Motion was held on August 6, 2021. For the reasons stated below, the Motion is GRANTED in part and DENIED in part. [1]
II. BACKGROUND
A. First Amended Complaint
Plaintiffs’ First Amended Complaint (“FAC”), which is the operative complaint, contains detailed allegations describing: 1) Twitter’s platform, business model and content moderation policies and practices (FAC ¶¶ 23-51); 2) the ways Twitter allegedly permits and even aids in the distribution of child pornography on its platform and profits from doing so (FAC ¶¶ 52-84); 3) how pornographic content featuring John Doe #1 and John Doe #2 was created and eventually ended up on Twitter’s platform (FAC ¶¶ 85-100); and 4) Twitter’s response to requests that the pornographic photos and videos containing Plaintiffs’ images be removed from Twitter (FAC ¶¶ 101-132). Based on these allegations, Plaintiffs assert the following claims: 1) violation of the Trafficking Victims Protection Reauthorization Act (“TVPRA”), 18 U.S.C. §§ 1591(a)(1) and 1595(a) based on the allegation that “Twitter knew, or was in reckless disregard of the fact, that through monetization and providing, obtaining, and maintaining [child sexual abuse material (“CSAM”)] on its platform, Twitter and Twitter users received something of value for the video depicting sex acts of John Doe #1 and John Doe #2 as minors.” FAC ¶¶ 133- 143 (Claim One);
2) violation of the TVPRA, 18 U.S.C. §§ 1591(a)(2) and 1595(a), based on the allegation that Twitter “knowingly benefited, or should have known that it was benefiting, from assisting, supporting, or facilitating a violation of 1591(a)(1).” FAC ¶¶ 144-155 (Claim Two); 3) violation of the duty to report child sexual abuse material under 18 U.S.C. §§ 2258A and 2258B. FAC ¶¶ 156-163 (Claim Three);
4) civil remedies for personal injuries related to sex trafficking and receipt and distribution of child pornography under 18 U.S.C. §§ 1591, 2252A, and 2255, based on the allegations that Twitter was “notified of the CSAM material depicting John Doe #1 and John Doe #2 as minors on its platform and still knowingly received, maintained, and distributed this child pornography after such notice[,]” causing Plaintiffs to suffer “serious harm and personal injury, including, without limitation, physical, psychological, financial, and reputational harm.” FAC ¶¶ 164-176 (Claim Four);
5) California products liability based on the allegedly defective design of the Twitter platform, which is “designed so that search terms and hashtags utilized for trading CSAM return suggestions for other search terms and hashtags related to CSAM” and through use of “algorithm(s), API, and other proprietary technology” allows “child predators and sex traffickers to distribute CSAM on a massive scale” while also making it difficult for users to report CSAM and not allowing for immediate blocking of CSAM material once reported pending review. FAC ¶¶ 177-190 (Claim Five); 6) negligence based on allegations that Twitter had a duty to protect Plaintiffs, had actual knowledge that CSAM containing their images was being disseminated on its platform and failed to promptly remove it once notified. FAC ¶¶ 191-197 (Claim Six);
7) gross negligence based on the same theory as Plaintiffs’ negligence claim. FAC ¶¶ 198- 203 (Claim Seven);
8) negligence per se based on the allegation that Twitter’s conduct violated numerous laws, including 18 U.S.C. §§ 1591 and 1595 (benefiting from a sex trafficking venture), 18 U.S.C. § 2258A (failing to report known child sexual abuse material), 18 U.S.C. § 2552A (knowingly distributing child pornography), Cal. Civ. Code § 1708.85 (intentionally distributing non- consensually shared pornography), and Cal. Penal Code § 311.1 (possessing child pornography). FAC ¶¶ 204-26 (Claim Eight);
9) negligent infliction of emotional distress. FAC ¶¶ 207-212 (Claim Nine); 10) distribution of private sexually explicit materials, in violation of Cal. Civ. Code § 1708.85, based on the allegation that “[b]y refusing to remove or block the photographic images and video depicting him after Plaintiff John Doe #1 notified Twitter that both he and John Doe #2 were minors, Twitter intentionally distributed on its online platform photographic images and video of the Plaintiffs.” FAC ¶¶ 213-218 (Claim Ten);
11) intrusion into private affairs, based on the allegation that “Twitter intentionally intruded into Plaintiffs’ reasonable expectation of privacy by continuing to distribute the photographic images and video depicting them after John Doe #1 notified Twitter that Plaintiffs were minors and the material had been posted on its platform without their consent.” FAC ¶¶ 219- 223 (Claim Eleven);
12) invasion of privacy under the California Constitution, Article 1, Section 1. FAC ¶¶ 224-228 (Claim Twelve); and 13) violation of California Business and Professions Code § 17200 (“UCL”) based on allegations that “Twitter utilized and exploited Plaintiffs for its own benefit and profit” and “Plaintiffs, to their detriment, reasonably relied upon Twitter’s willful and deceitful conduct and assurances that it effectively moderates and otherwise controls third-party user content on its platforms.” FAC ¶¶ 229-234 (Claim Thirteen). Plaintiffs seek compensatory and punitive damages, injunctive relief, restitution, disgorgement of profits and unjust enrichment and attorneys’ fees and costs.
B. Statutory Background
1. The CDA The CDA was enacted as part of the Telecommunications Act of 1996. It contains a “Good Samaritan” provision that immunizes interactive computer service (“ICS”) providers from liability for restricting access to certain types of materials or giving users the technical means to restrict access to such materials, providing as follows:
(c) Protection for “Good Samaritan” blocking and screening of offensive material (1) Treatment of publisher or speaker
28 No provider or user of an interactive computer service shall be 1 treated as the publisher or speaker of any information provided by another information content provider. 2
Civil liability
No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). 47 U.S.C. § 230(c).
“This grant of immunity dates back to the early days of the internet when concerns first
arose about children being able to access online pornography.”
Enigma Software Grp. USA, LLC
v. Malwarebytes, Inc.
,
The Ninth Circuit has interpreted CDA § 230 broadly: so long as an interactive computer
service provider is not also an “information content provider,” that is, someone who is
“responsible, in whole or in part, for the creation or development of” the offending content, it is
immune from liability arising from content created by third parties.
Fair Hous. Council of San
Fernando Valley v. Roommates.Com, LLC
,
As expressly stated in Section 230, the policies underlying the enactment of that section are: (1) to promote the continued development of the Internet and other 13 interactive computer services and other interactive media; 14 (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, 15 unfettered by Federal or State regulation; 16 (3) to encourage the development of technologies which maximize user control over what information is received by individuals, 17 families, and schools who use the Internet and other interactive computer services; 18 (4) to remove disincentives for the development and utilization of 19 blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate 20 online material; and 21 (5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by 22 means of computer. 47 U.S.C. § 230(b).
23 Section 230 expressly states that it has “[n]o effect on criminal law[,]” providing that 24 “[n]othing in this section shall be construed to impair the enforcement of section 223 or 231 of this 25 title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 26 27
18, or any other Federal criminal statute.” 47 U.S.C. § 230(e)(1). It expressly preempts all state laws that are inconsistent with Section 230’s grant of immunity. 47 U.S.C. § 230(e)(3) (“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”).
2. The TVPRA
In 2000, Congress enacted the TVPRA, which criminalized sex trafficking. When it
enacted the TVPRA, “Congress declared that the purposes of the [TVPRA] are to ‘combat
trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly
women and children, to ensure just and effective punishment of traffickers, and to protect their
victims.’ ”
Ditullio v. Boehm
,
In its current form, the TVPRA makes it a crime to engage in direct sex trafficking or to benefit financially from sex trafficking, providing as follows:
(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or (2) benefits, financially or by receiving anything of value, from 25 participation in a venture which has engaged in an act described in violation of paragraph (1), 26 knowing, or, except where the act constituting the violation of
27 paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in 28 subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).
18 U.S.C. § 1591(a). Section 1591(e) further provides that “[in] this section . . . [t]he term ‘participation in a venture’ means knowingly assisting, supporting, or facilitating a violation of subsection (a)(1).” 18 U.S.C. § 1591(e)(4).
The civil liability provision in its current form provides that “[a]n individual who is a victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.” 18 U.S.C. § 1595(a). 3. FOSTA In 2018, the CDA was amended by the Allow States and Victims to Fight Online Sex
Trafficking Act of 2017, Pub. L. No. 115-164, 132 Stat. 1253 (2018) (“FOSTA”), which inserted a
new provision in CDA § 230 specifically addressing the application of that section in the context
of sex trafficking law.
See
47 U.S.C. § 230(f)(5). “ ‘Congress passed [FOSTA] to narrow Section
230’s scope and provide prosecutors with new tools to combat the sex trafficking of both minors
and adults.’ ”
J. B. v. G6 Hosp., LLC
, No. 19-CV-07848-HSG,
FOSTA’s amendment of the CDA consisted of adding Section 230(e)(5): (5) No effect on sex trafficking law
Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—
(A) any claim in a civil action brought under section 1595 of Title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title;
(B) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of Title 18; or
(C) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of Title 18, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant's promotion or facilitation of prostitution was targeted.
47 U.S.C. § 230(e)(5). “ ‘FOSTA narrowed the scope of immunity for interactive computer
service providers, by providing that Section 230 has “[n]o effect on sex trafficking law,” and shall
not “be construed to impair or limit” civil claims brought under TVPRA Section 1595 or criminal
charges brought under state law if the underlying conduct would constitute a violation of TVPRA
Sections 1591 or 2421A.’ ”
J. B. v. G6 Hosp., LLC
,
C. Contentions of the Parties
1. Motion Twitter argues in the Motion that it is immune under CDA § 230 as to all of Plaintiffs’ claims. Motion at 2. According to Twitter, the amendment of Section 230 under FOSTA, permitting sex trafficking victims to pursue civil claims under 18 U.S.C. § 1595 against an interactive computer service provider where the provider violates 18 U.S.C. § 1591, created only a narrow exception to the immunity afforded under Section 230 that was “carefully targeted to remove civil immunity for the few criminal websites that, unlike Twitter here, were deliberately and knowingly assisting and profiting from reprehensible crimes.” Id. Twitter contends, “FOSTA’s language, its legislative history, and the pre-existing case law on Section 1591 all point to the same conclusion: civil claims can only proceed against sex traffickers and those who knowingly benefit from their affirmative participation in a sex trafficking venture.” Id.
Twitter argues that here, Plaintiffs have failed to allege facts showing that the exception to immunity created under FOSTA applies because the FAC: 1) “lacks any facts showing that Twitter affirmatively participated in any kind of venture with the Perpetrators, let alone a sex trafficking venture”; 2) “does not allege, as required to establish a violation of Section 1591, any facts establishing that Twitter knew that Plaintiffs were victims of sex trafficking or that the Videos were evidence of this crime”; and 3) does not “allege any connection between the Perpetrators and Twitter or that Twitter received any benefits because of the Videos.” Id. Twitter further asserts that CDA § 230 protects it from liability because “Twitter did remove the Videos and suspend the accounts that had posted them” and it cannot be held liable under “any applicable law” simply because it did not take the videos down immediately. Id. Twitter represents that it “vigorously combats [child sexual exploitation material (“CSE”)] through a combination of methods, including review of user reports and the use of proprietary technology to proactively identify and remove such material” but that “given the sheer volume of Tweets posted every day on Twitter’s platform (hundreds of millions of Tweets posted by over 190 million daily users), it is simply not possible for Twitter – or the individuals who enforce its Rules and policies – to find and remove all offending content immediately or accurately in all cases.” at 1. Twitter points to its zero-tolerance policy for child sexual exploitation materials, which is set forth in its Rules – to which users must agree when they create a Twitter account. at 6. According to Twitter, it also “utilizes multiple tools, including reports by the public . . . , moderators who review reports of abuse and CSE content, innovative technology and algorithms that proactively identify abusive content, and online education and information sharing to combat online abuse.” (citing FAC ¶¶ 42-43, 55-57; Wong Decl., Exs. 1 (news article entitled “Twitter says it’s getting better at detecting abusive tweets without your help”), 2 (a blog post by Twitter entitled “A healthier Twitter: Progress and more to do”)). According to Twitter, in enacting FOSTA, Congress did not intend “for online platforms like Twitter that proactively act against such activity to be sued for their inadvertent failure to remove content.” Id. at 2.
The purpose of CDA § 230, according to Twitter, was “to ensure that interactive computer
service (‘ICS’) providers would never have to choose ‘between taking responsibility for all
messages and deleting no messages at all,’ which presents such providers a ‘grim’ and illusory
choice.”
Id.
at 3 (quoting
Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC
,
Here, Twitter asserts, it meets all the requirements for establishing immunity under CDA § 230, namely, that (1) it is an ICS provider; (2) Plaintiffs’ claims treat Twitter as the publisher or speaker of the content in question; and (3) someone other than Twitter provided or created the content at issue. Id. at 8-11. Twitter argues further that the FAC does not allege facts that would establish that any exemption to CDA § 230 applies, including the FOSTA exception that allows for the imposition of liability where the ICS itself violates Section 1591, either as a “primary violator” or a “secondary participant” that ‘knowingly . . . benefits, financially or by receiving anything of value, from participation in a venture’ with a primary violator.” Id. (quoting 18 U.S.C. § 1591(a)). Id. at 11-12.
With respect to Plaintiffs’ claim that Twitter was a primary participant in sex trafficking under Section 1591(a)(1), Twitter contends Plaintiffs’ allegations fall short because “[t]o plead a primary violation, a plaintiff must allege that the defendant ‘provide[d], obtain[ed], [and] maintain[ed] . . . a person ” knowing that he or she “will be . . . cause[d]” to engage in a commercial sex act.” Id. at 12 (quoting 18 U.S.C. § 1591(a)(1)) (emphasis added by Twitter). Twitter contends “Plaintiffs allege only that ‘Twitter knowingly provided, obtained, and maintained the Videos ,’ not Plaintiffs” and therefore they fail to allege a primary violation. Id. (quoting FAC ¶ 141) (emphasis added by Twitter). Twitter also argues that as to Plaintiffs’ claims under both Section 1591(a)(1) and Section 1591(a)(2), those claims fall short for the additional reason that Section 1591 “requires a defendant to know that the victim ‘will in the future [be] cause[d] . . . to engage in prostitution.’ ” at 12 n. 10 (citing United States v. Todd , 627 F.3d 329, 334 (9th Cir. 2010)). According to Twitter, “Plaintiffs cannot plead that Twitter had such knowledge as the FAC alleges that Plaintiffs had cut off contact with the Perpetrators before the Videos were posted on Twitter’s platform.” (citing FAC ¶¶ 94-96).
Twitter contends Plaintiffs also fail to allege that it was a secondary participant under Section 1591(a)(2). at 12-19. According to Twitter, to establish that it is a secondary participant, Plaintiffs must “plead that Twitter ‘knowingly . . . benefit[ed] . . . from participation in a venture which has engaged in [sex trafficking] in violation of [Section 1591(a)(1)].’ ” Id. (quoting 18 U.S.C. § 1591(a)(2)). It further asserts that Section 1591 was amended by FOSTA to define “[p]articipation in a venture” as “ knowingly assisting, supporting, or facilitating” a primary violation. Id . at 12 (quoting 18 U.S.C. § 1591(e)(4)) (emphasis added by Twitter)). Twitter argues that neither of the grounds upon which Plaintiffs rely to establish that Twitter was a secondary participant – “(i) Twitter’s initial failure to find a violation of its policies after reviewing the Video, or (ii) Twitter’s nine-day delay in removing the Videos” – establishes it was a secondary participant for three reasons. Id.
“First, Plaintiffs do not allege the existence of any type of venture between Twitter and any
party that has a common purpose, much less facts suggesting ‘that [Twitter] actually participated
in a
sex-trafficking venture’
that had the common purpose of trafficking Plaintiffs.”
Id.
at 12
(quoting
United States v. Afyare
,
“Third, the FAC does not contain any allegation that Twitter had actual knowledge that
Plaintiffs were victims of sex trafficking or that it knew the Videos contained evidence of this.”
at 12 (citing FAC ¶¶ 152-54;
Noble v. Weinstein
,
Twitter argues that even if it is not immune under CDA § 230, Plaintiffs fail to state a
claim under Section 1595.
Id.
at 19-21. First, it argues that Plaintiffs fail to allege that Twitter is
a perpetrator and therefore cannot establish liability on the basis of primary liability. at 19.
To the extent that Plaintiffs assert their claim under Section 1595 on a “beneficiary” theory the
claim also fails, Twitter asserts, because Plaintiffs have not alleged that Twitter participated in a
venture with the perpetrators or that Twitter should have known of Plaintiffs’ alleged sex
trafficking. at 19-21.
Twitter further asserts that even if Plaintiffs’ Section 1595 claim is not subject to immunity
under CDA § 230, their remaining claims are nonetheless barred because FOSTA removes
immunity
only
for claims asserted under Section 1595. at 21-22 (citing
Kik
, 482 F.Supp.3d at
1249;
M. L. v. Craigslist Inc
.,
Twitter argues further that Plaintiffs fail to state viable claims under 18 U.S.C. §§ 2258A
& 2258B, California products liability law, as to any of their negligence claims, under Cal. Civ.
Code § 1708.85, or under Cal. Bus. & Prof. Code § 17200.
Id.
at 22-25. Twitter contends there is
no private right of action as to18 U.S.C. §§ 2258A & 2258B.
Id.
at 22 (citing
Abcarian v. Levine
,
Twitter contends Plaintiffs’ claim under California Civil Code section 1708.85, which creates a private right of action against a person “who intentionally distributes” private sexually explicit materials “without consent” fails to state a claim because “the FAC alleges no facts from which the Court could infer that Twitter ‘intentionally distribute[d]’ the Videos; rather, it makes a conclusory allegation that ‘[b]y refusing to remove or block [the Videos], Twitter intentionally distributed’ them” Id. (citing FAC ¶ 214). It argues further that “liability is precluded if the ‘material was previously distributed by another person,’ Cal. Civ. Code § 1708.85(c)(6), and here, the Videos were distributed first on a different platform—Snapchat—by two individuals (whom Plaintiffs do not allege were the individual(s) who trafficked them) months before Twitter ever became aware of the Videos—@StraightBross and @fitmalesblog.” Id. (citing FAC ¶¶ 87-89, 99, 100.)
Finally, Twitter argues that Plaintiffs’ UCL claim is insufficiently pled because Plaintiffs
have not alleged any economic injury and therefore, they do not have standing to assert the claim.
at 24 (citing
Huynh v. Quora, Inc
.,
2. Opposition In their Opposition, Plaintiffs reject Twitter’s challenges under CDA § 230, arguing that the claims in this case are based on just the sort of knowing conduct that Congress intended to exempt from Section 230 when it enacted FOSTA. Opposition at 1. In particular, they assert that Twitter knew that the Videos were being widely distributed on its platform and that they contained child pornography created as a result of sex trafficking and deliberately allowed the posts to remain on Twitter.
First, Plaintiffs argue that they have sufficiently alleged their claims under the TVPRA,
which FOSTA exempts from CDA § 230, both on the basis of direct sex trafficking under Section
1591(a)(1) and as a beneficiary of sex trafficking under Section 1591(a)(2). at 3. With
respect to direct sex trafficking, Plaintiffs point to the language of Section 1591(a)(1), providing
for liability for a perpetrator who “knowingly . . . recruits, entices, harbors, transports, provides,
obtains, advertises, maintains, patronizes, or solicits
by any means
a person,” while “knowing, or .
. . in reckless disregard of the fact . . . that the person has not attained the age of 18 years and will
be caused to engage in a commercial sex act[.]” (quoting 8 U.S.C. § 1591(a)) (emphasis
added). According to Plaintiffs, “the phrase ‘by any means’ is not defined and contains no
exception for electronic or virtual actions.”
Id.
Further, they assert, while the statute does not
define the words “provide[],” “obtain[ ],” or “maintain[ ],” their ordinary meaning as evidenced
by dictionary definitions – upon which the Ninth Circuit has relied to define other undefined terms
of the TVPRA –support the conclusion that Plaintiffs’ allegations are sufficient as to the first part
of Section 1591(a)(1) (establishing liability as to a defendant that “knowingly . . . recruits, entices,
harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a
person”).
Id.
at 3-4. In particular, Plaintiffs contend they have satisfied this requirement by
alleging that “Twitter made them available, as depicted in a CSAM compilation video, to users on
Twitter, having gained or attained Plaintiffs by the same electronic means, and having kept them
in the same existing state, all despite Plaintiffs’ own reports and objections.” at 4 (citing
United States v. Love,
Plaintiffs further assert that child pornography can be the basis for a TVPRA claim under
Section 1591(a)(1), including in cases where the perpetrator procures pornographic material
without having direct contact with the child or paying money for the material.
Id.
at 4-5 (citing
United States v. Flanders
,
Plaintiffs argues further that their allegations are sufficient as to the second phrase of Section 1591(a)(1), requiring that the conduct that is the basis for the claim must have been “knowing, or . . . in reckless disregard of the fact . . . that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act[.]” Id. at 5-6. According to Plaintiffs, a “commercial sex act” is defined under the TVPRA as “ ‘any sex act, on account of which anything of value is given to or received by any person[.]’ ” Id. at 6 (quoting 18 U.S.C. § 1591(e)(3)). Here, they contend, they have alleged “actual knowledge” in that they “alleged that they reported child sexual abuse material featuring them to Twitter, depicting them engaged in sexual acts due to extortion and blackmail (that is, in exchange for ‘something of value’).” Id. (citing FAC ¶¶ 112, 114, 123). They also point to their allegation that “John Doe 1 provided proof of his age to Twitter, that numerous users commented on their belief that videos featured minors and that one disseminating account had already been reported to Twitter for CSAM.” Id. (citing FAC ¶¶ 101-102, 114, 121-122). Plaintiffs argue that “[t]aken together, these allegations are more than sufficient to indicate that Twitter knew, or at least was in reckless disregard of, Plaintiffs’ status as minors when engaging in the commercial sex acts at issue.” Id. at 5-6. Plaintiffs also argue that they state a claim on the basis of beneficiary liability under Section 1595(a) and Section 1591(a)(2), addressing the requirements of both provisions; according to Plaintiffs, Sections 1591(a)(2) and 1595(a) “have similar provisions for those who benefit financially, and distinct requirements for participation in a venture and the requisite level of knowledge.” at 6.
With respect to whether Plaintiffs have alleged that Twitter knowingly “benefited
financially or by receiving anything of value,” Plaintiffs contend they have satisfied this
requirement by alleging that Twitter both monetizes the CSAM on its platform and gains more
viewers from CSAM, which makes the platform more popular and attracts advertisers. at 6-7.
In support of this argument, it points to
B.M. v. Wyndham
,
Plaintiffs reject Twitter’s argument that “any benefit [it] receives must have a causal
relationship to the sex trafficking[,]” arguing that the cases upon which it relies –
Geiss v.
Weinstein Co. Holdings LLC
,
As to the “common purpose” argument, Plaintiffs contend Twitter relies on cases
interpreting the Racketeer Influenced and Corrupt Organizations Act (“RICO”) in support of such
a requirement, but that these cases have no bearing on Plaintiffs’ TVPRA claims. (citing
Motion at 13 (citing
United States v. Turkette
,
Plaintiffs argue that Twitter’s passive beneficiary argument also fails because it’s reliance
on
Afyare
,
Plaintiffs also point to Section 1595, which they contend under
B.M.
requires that they
“allege that Twitter (1) ‘knowingly benefit[ted] financially or by receiving anything of value’; (2)
from participation in a venture; (3) that they ‘knew or should have known [had] engaged in’ sex
trafficking.’ ”
Id.
at 14 (quoting
B.M
.,
Plaintiffs strenuously disagree with Twitter’s characterization of the legislative history of FOSTA and its argument that Congress intended to create only a narrow exception for bad actors like Backpage. at 16-19. Plaintiffs argue that in any event, they have alleged conduct that is sufficient to fall within the exception, and the question of “how Twitter’s actions compare to Backpage is a factual question that cannot be resolved at this stage of the litigation.” Id.
Plaintiffs also argue that even apart from FOSTA, CDA § 230 was “never intended to
immunize conduct that entails both criminal and civil liability.”
Id.
(citing
Fair Hous. Council of
San Fernando Valley v. Roommates.Com, LLC
,
Further, Plaintiffs assert, the stated purpose for CDA § 230 is inconsistent with Twitter’s argument that it creates “immunity for all third-party content, even contraband – specifically, child pornography[.]” The title of Section 230 – “Protection for private blocking and screening of offensive material” – supports this conclusion, Plaintiffs assert. Id. Likewise, the policies stated in Section 230 indicate that it was enacted “to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material,” and “to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.” (quoting 47 U.S.C.A. § 230(b)(4)-(5)). Twitter’s position would undermine these policies rather than advance them, Plaintiffs assert. Id.
Plaintiffs also argue that CDA § 230 does not apply to their claim under 18 U.S.C. § 2252A and 2255 that Twitter knowingly possessed and distributed child pornography (Claim Four) because “CSAM material is not lawful ‘information provided by another information content provider’” but rather is illegal contraband, stemming from the sexual abuse of a child, and wholly outside any protection or immunity under the law, to include CDA 230.’ ” Id. at 22. Plaintiffs’ further assert that “CDA 230 was enacted to incentivize internet service providers (“ISP’s”) to protect children, not immunize them for intentionally or recklessly harming them.” Id.
Plaintiffs argue that the Court should decline to follow the case cited by Twitter,
Doe v.
Bates
,
Plaintiffs also challenge Twitter’s argument that their claims under 18 U.S.C. § 2258A(a)(1) and (a)(2) fail because those provisions do not create a civil cause of action. Id. (citing Motion at 22). According to Plaintiffs, “Congress intended to make deliberate and reckless violations of 2258A privately enforceable” and that is what they allege here. (citing 18 U.S.C. § 2258B(b)). Plaintiffs argue further that “the standards of misconduct in paragraph (b) of 2258(B) establish the duty of care that Twitter owes Plaintiffs” for the purposes of their negligence claims and thus establish liability under both federal and state law. Id. at 25-26.
Next, Plaintiffs argue that CDA § 230 does not give rise to immunity as to their state law
products liability claim based on negligent design.
Id.
According to Plaintiffs, this is because
their claim “does not attempt to treat Twitter as the ‘publisher or speaker’ of information.”
Id.
at
26. Instead, “it seeks to hold Twitter accountable for failing in its ‘duty to exercise due care in
supplying products that do not present an unreasonable risk of injury or harm to the public.’ ”
Id.
(quoting
Lemmon v. Snap, Inc
., No. 20-55295,
3. Reply
In its Reply, Twitter reiterates its arguments that it cannot be held liable as either a
perpetrator of sex trafficking under Section 1591(a)(1) or a criminal beneficiary of sex trafficking
under Section 1591(a)(2). Reply at 1-10. As to Plaintiffs’ direct sex trafficking claim under
Section 1591(a)(1), Twitter rejects Plaintiffs’ interpretation of the provision, again pointing to the
words “a person” in the provision to argue that the prohibited conduct applies to an
individual
. at 2. Twitter argues that Plaintiffs’ “novel” interpretation of the provision as also encompassing a
video depicting a person is not supported by any authority.
Id.
Twitter points to other uses of the
word “person” in Section 1591 to support its argument that this word cannot be read to mean a
depiction of a person under Section 1591(a)(1). at 3 (citing 18 U.S.C. § 1591(a)(2) (“person
has not attained the age of 18”); 18 U.S.C. § 1591(e)(2) (“coercion” is “threats of serious harm to
or physical restraint against any person”)).
Twitter argues further that the cases cited by Plaintiffs in support of their reading of
Section 1591(a)(1),
United States v. Flanders
,
Twitter also repeats its argument that Plaintiffs, by their own admission, cannot satisfy the requirement under Section 1591(a) that a defendant must have known that a victim “will in the future [be] cause[d]” to engage in a commercial sex act given that Plaintiffs’ allegations establish that “the venture was over at the time Twitter allegedly refused to remove the Videos from its platform, . . . making it impossible for Twitter to know that its alleged failure to act would likely cause Plaintiffs to engage in commercial sex acts in the future.” Id.
Twitter also rejects Plaintiffs’ arguments as to their claim that Twitter is liable as a
beneficiary of sex trafficking under Section 1591(a)(2).
Id
. at 3-10. It again argues that it did not
participate in any “venture” for the purposes of this subsection because it was not “associated in
fact” with the perpetrators.
Id.
at 4. Twitter acknowledges that this term is not defined under
Section 1591 but argues it is reasonable to look to the RICO cases cited in the Motion to
understand its meaning.
Id.
Twitter reiterates its argument that these cases support the conclusion
that to be engaged in a “venture” under Section 1591 the participants must have a common
purpose, which Plaintiffs fail to allege.
Id.
Twitter notes that “[t]his construction of ‘venture’ is
implicit to the
Afyare
court’s holding that Section 1591(a)(2) requires proof of a sex trafficking
venture and that ‘[t]wo or more people who engage in sex trafficking together are a sex-trafficking
venture.’ ”
Id.
n. 4 (quoting
United States v. Afyare
,
Twitter also asserts that Plaintiffs’ claim under Section 1592(a)(2) fails because the FAC
does not allege any “active participation” by Twitter, arguing again that Plaintiffs must allege
overt acts by Twitter in furtherance of the venture.
Id.
According to Twitter, Plaintiffs do not
dispute that this is a requirement but instead argue, without authority, that its denial of the requests
to remove the Videos was an affirmative act that satisfies this requirement.
Id.
(citing Opposition
at 12). Twitter contends this argument “conflicts with the FAC itself, which is clear that Plaintiffs
were allegedly harmed by the failure to immediately remove the Videos.”
Id.
(citing FAC ¶¶ 124-
25). In any event, they assert, Plaintiffs’ argument fails because “Twitter’s failing to act is not
‘affirmative conduct’ ” and “the nine-day removal time frame is not tantamount to an affirmative
act on Twitter’s part.”
Id.
(citing Motion at 14-15 (quoting
Geiss v. Weinstein Co. Holdings, LLC
,
More importantly, Twitter argues, “the Opposition never explains how Twitter could have received a benefit from Plaintiffs’ alleged sex trafficking when none of the broad allegations regarding how Twitter makes money are connected to what happened to them.” Id. Twitter contends the “FAC does not allege that there were any advertisements, or promoted Tweets associated with the Videos, nor does it allege that Twitter obtained (let alone licensed) any data related to the Videos.” Id. Moreover, it argues, the allegations that Twitter “ ‘continued to distribute the CSAM that it had monetized after’ John Doe #1 and his mother reported it” are not supported by any specific facts and therefore do not raise a plausible inference that Twitter received a benefit from the Videos. at 7-8 (citing Opposition at 8-10 (citing FAC ¶¶ 52-54)).
Twitter argues further that the Opposition also “does not provide any other facts that would establish the ‘causal relationship’ between receipt of a benefit and Twitter’s ‘actual knowledge of that causal relationship.’ ” Id. at 8. Twitter rejects Plaintiffs’ argument that it has satisfied this requirement by alleging that Twitter’s conduct was motivated by the fact that “CSE content is ‘highly sought-after’ on Twitter and Twitter ‘makes significant revenue from the presence, searches, connections, and interactions of such illegal and dangerous material.’ ” Id. at 8 (quoting Opposition at 9 (citing ¶¶ 37, 71, 84))). According to Twitter, “these allegations are not only incorrect, they are conclusory and unsupported.” Id. And to the extent that Plaintiffs point to allegations citing statements about how it monetizes its platform, these allegations are insufficient, Twitter asserts, because they do not establish that Twitter monetizes all public posts and interactions. Id. n. 8 (citing Opposition at 8-9; FAC ¶ 33).
Next, Twitter rejects Plaintiffs’ argument that they have satisfied the “actual knowledge”
requirement of Section 1591(a)(2) by alleging facts showing “reckless disregard or constructive
knowledge.”
Id.
at 9. Twitter argues that this standard is incorrect and that “[c]ourts have
repeatedly held that Section 1591(a)(2) requires a defendant to have actual knowledge of the sex
trafficking venture involving the plaintiff to constitute a criminal violation suffices for a Section
1591(a)(2) violation.”
Id.
at 9 (citing
Kik
,
Twitter concedes that Plaintiffs allege “that John Doe #1 emailed saying Plaintiffs ‘were baited, harassed, and threatened to take these videos,’ ” but contends “that is simply insufficient to establish Twitter’s actual knowledge of the alleged sex trafficking” because “[f]rom John Doe #1’s email Twitter cannot tell whether Plaintiffs were harassed and baited by friends or an adult, for example, and Twitter cannot tell whether the harassment caused them to engage in the sex acts, film them, or share the Videos with others.” at 9-10 (citing Opposition at 13 (citing FAC ¶ 123)).
Twitter reiterates its arguments that Congress intended only to create a narrow exception to Section 230 when it enacted FOSTA. at 10-12. That exception, it contends, was to allow for the imposition of liability on “websites that ‘have done nothing to prevent the trafficking of children .’ ” Id. at 12 (quoting Opposition at 17-18 (emphasis in Opposition)). Twitter argues that “even according to Plaintiffs’ own allegations, Twitter plainly is not one of those websites.” Id. (citing FAC ¶¶ 42-43, 55-58, 60, 64-65, 128-29).
Twitter also rejects Plaintiffs’ argument that CDA § 230 only provides immunity where an
ICS
removes
offensive content, arguing that it is well settled in the Ninth Circuit that Section 230
applies whenever a claim is based on an ICS’s decision to publish or remove third-party content.
Id.
at 12-13 (citing
Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC
, 521
F.3d 1157, 1170–71 (9th Cir. 2008);
Barnes v. Yahoo!, Inc
.,
Twitter argues further that “the FAC alleges no facts showing that Twitter ‘should have known’ that the Videos involved sex trafficking conduct – i.e ., the exploitation of children for commercial sex purposes,” despite the arguments in the Opposition to the contrary. Id. at 15-16 (citing Motion at 20-21; Reply at 9-10; Opposition at 15). According to Twitter, “[t]he Opposition’s reliance on Twitter’s alleged ‘general knowledge’ of CSE content on its platform also fails because such knowledge does not demonstrate Twitter should have known of what specifically happened to Plaintiffs.” Id. at 16 (citing A.B. v. Hilton Worldwide Holdings Inc ., 484 F. Supp. 3d 921, 937-38 (D. Oregon 2020)).
Twitter reiterates it position that all of Plaintiffs’ remaining claims are barred under CDA § 230. Id. at 16-18. Twitter contends Plaintiffs “do not disagree save for their products liability claim.” Id.
As to Twitter’s arguments that Plaintiffs have failed to state viable state law claims,
Twitter notes that Plaintiffs did not address its arguments related to California Civil Code section
1708.85 and contends this claim should therefore be dismissed. at 19.
Twitter argues as to the products liability claim that Plaintiffs’ reliance on
Lemmon v. Snap
to argue that CDA § 230 does not immunize Twitter from their products liability claim is
misplaced because in that case, the plaintiffs’ claims were based on the use of a “speed filter” and
did not, as here, treat the defendant as a publisher of information. at 19-20 (citing 995 F.3d at
1087-88).
Twitter argues that Plaintiffs’ Opposition fails to establish that they have viable negligence
claims because if does not address Twitter’s argument that it owed Plaintiffs no duty.
Id.
at 20
(citing Motion at 23-24;
GN Resound A/S v. Callpod, Inc
.,
Finally, Twitter argues that the Opposition fails to establish that Plaintiffs have standing on
their UCL claim. at 20-21. First, to the extent that the Opposition “seemingly argues that
Plaintiffs have standing to bring a UCL claim because they suffered economic injury as a result of
the ‘monetization and dissemination of Plaintiffs’ images and likenesses’ by Twitter[,]” Twitter
rejects that argument.
Id.
(citing Opposition at 29-30 (citing
Fraley v. Facebook, Inc
., 830 F.
Supp. 2d 785, 811 (N.D. Cal. 2011))). According to Twitter
, Fraley
does not support Plaintiffs’
position because in that case, the “plaintiffs alleged that Facebook ‘fail[ed] to compensate them
for their valuable endorsement of third-party products and services’ when it took their image and
name to create ‘Sponsored Stories.’ ” (quoting
Twitter also rejects Plaintiffs’ reliance on its alleged “criminal, aiding and abetting
conduct” in support of UCL standing, arguing that this theory (which was raised for the first time
in the Opposition) fails because “[a]iding and abetting requires not only knowledge [of the
complained of act], but ‘substantial assistance o[r] encouragement’ of another’s tort.” at 21
(citing Opposition at 29; quoting
Chetal v. Am. Home Mortg
.,
organizations contend Congress intended to afford greater protection to victims of online sex trafficking by abrogating the broad immunity afforded under CDA § 230 and urge the Court to reject Twitter’s assertion that it is immune from Plaintiffs’ claims in this case.
III. ANALYSIS
A. Legal Standards Under Rule 12(b)(6)
A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a claim on which relief can be granted. “The purpose of a motion to dismiss
under Rule 12(b)(6) is to test the legal sufficiency of the complaint.”
N. Star Int’l v. Ariz. Corp.
Comm’n
,
In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and
takes “all allegations of material fact as true and construe[s] them in the light most favorable to the
non-moving party.”
Parks Sch. of Bus. v. Symington
,
B. The TVPRA Claims (Claims One and Two)
Plaintiffs assert two claims against Twitter under the TVPRA – a claim for direct sex trafficking and a claim for beneficiary liability. For the reasons set forth below, the Court finds that Plaintiffs fail to state a claim for direct sex trafficking and therefore does not reach the question of whether that claim is barred under CDA § 230. On the other hand, the Court finds that Plaintiffs state a claim for beneficiary liability under the TVPRA and that Section 230 does not apply to that claim.
1. Direct Sex Trafficking
Both sides rely on the plain language of Section 1591(a)(1) in support of their arguments relating to the sufficiency of Plaintiffs’ allegations that Twitter engaged in direct sex trafficking in violation of the TVPRA. Twitter argues that the series of verbs in the provision relate to a “person” and that here, Twitter’s alleged conduct relates not to a person but to the Videos. Plaintiffs, on the other hand, points to the words “by any means” in Section 1591(a)(1) in support of their reading of the provision. The Court finds Twitter’s argument more persuasive.
Section 1591(a)(1) contains a series of verbs, all of which relate to a “person.” One of the
verbs – the word “advertises” – might plausibly be read to fit the allegations in the FAC as a video
posted on Twitter could, at least as a matter of grammar, advertise a “person” but Plaintiffs don’t
claim that Twitter “advertised” them. The verbs on which Plaintiffs rely (“provides”, “obtains”
and “maintains”), on the other hand, do not lend themselves to the reading Plaintiffs suggest and
Plaintiffs have pointed to no authority that supports their interpretation of Section 1591(a)(1).
Plaintiffs’ reliance on
United States v. Tollefson
,
2. Beneficiary Liability The more difficult issue is whether Plaintiffs have stated a claim under Section 1591(a)(2) and, if they have, whether Twitter is immune from liability under Section 230 on that claim. To decide these questions, the Court must grapple with three primary issues. First, how stringent is the mens rea requirement as to Twitter’s knowledge of whether Plaintiffs were victims of sex trafficking. Second, what must be alleged to show that Twitter participated in a “venture.” Finally, what must be alleged to show that Twitter received a benefit from the sex trafficking venture and that the benefit motivated its conduct. As to all three questions, Twitter urges the Court to adopt the stringent requirements for establishing a criminal violation under Section 1591(a). The Court concludes, however, that Twitter’s arguments are at odds with the plain language of FOSTA and the case law addressing the requirements for establishing civil liability under Section 1595.
Although the post-FOSTA case law addressing the requirements of Section 1595 and
1591(a)(2) as they relate to third-party content and ICS providers is scant, a series of cases in
which victims of sex trafficking have sought to impose civil liability against hotel chains shed
light on the pleading requirements for such claims in other contexts. In those cases, courts have
addressed the significance of the fact that the “language of § 1591 differs from the language of §
1595” in that “the former does not have a constructive knowledge element manifested by ‘should
have known’ language.”
M.A. v. Wyndham Hotels & Resorts, Inc
.,
In
M.A.,
the plaintiff was a victim of sex trafficking that occurred at hotels owned by the
defendant and she sued under Sections 1595 and 1591(a)(2). Her claims were based on the theory
that the hotel chain benefited from the rental of the rooms where she was trafficked and knew or
should have known that trafficking was occurring there based on various signs of sex trafficking
that should have been obvious to hotel staff.
Next, the
M.A.
court addressed what the plaintiff was required to allege to meet the
“participation in a venture” requirement of Section 1595. Like Twitter here, the defendant in
M.A.
“rel[ied] extensively on
United States v. Afyare
,
The M.A. court’s interpretation of Section 1595 and the meaning of “participation in a venture” under that section was based on the following statutory analysis:
Some Defendants have relied on the definition of “participation in a venture” supplied in § 1591(e)(4). Generally, “there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning.” Atlantic Cleaners & Dyers v. United States , 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed. 1204 (1932). But this presumption does not apply where “there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” Id . Here, § 1591(e) purports to only apply to “this section,” i.e., § 1591. See, e.g., Gilbert v. United States Olympic Committee , No. 18-cv-00981-CMA-MEH, 2019 WL 1058194, at *9, *10 (D. Colo. Mar. 6, 2019) (noting that “there are persuasive reasons to conclude ... that the term ‘venture’ is defined differently in § 1591(a)(2) than it is in § 1589(b)” and “neither §§ 1589 nor 1595 define ‘venture’ ”). In addition to the language in § 1591(e) limiting the definitions to that section, applying the definition of “participation in a venture” provided for in § 1591(e) to the requirements under § 1595 would void the “known or should have known” language of § 1595. Such a construction would violat[e] the “ ‘cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be construed so that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ ” TRW Inc. v. Andrews , 534 U.S. 19, 31,122 S.Ct. 441 ,151 L.Ed.2d 339 (2001) (quoting Duncan v. Walker ,533 U.S. 167 , 174,121 S.Ct. 2120 ,150 L.Ed.2d 251 (2001)). Section 1591(e)(4) provides the following definition of “participation
in a venture”: “knowingly assisting, supporting, or facilitating a violation of subsection (a)(1).” The term “participation in a venture” in § 1591 thus imports a state of mind requirement—the participation must be “knowing.” Although § 1591(a)(2) also criminalizes some action taken with less than actual knowledge, that is, “reckless disregard, such “reckless disregard” provision applies only to the requirement “that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act.” § 1591 (a). It does not lessen the scienter requirement of actual knowledge as to participation or the venture’s true ends.
The court in M.A. went on to find that “[i]n the absence of a direct association, “the plaintiff could adequately allege participation under Section 1595 only by alleging facts showing “a continuous business relationship between the trafficker and the hotels such that it would appear that the trafficker and the hotels have established a pattern of conduct or could be said to have a tacit agreement.” Id. The court found that the plaintiff met this requirement by alleging that the defendant rented rooms to people it knew or should have known were engaged in sex trafficking. Id.
District courts, including in this district, have found the statutory analysis in
M.A.
supporting its interpretation of Section 1595 to be persuasive. In
B.M. v. Wyndham Hotels &
Resorts, Inc
., Judge Freeman stated, “The Court agrees with the statutory construction analysis in
M.A. v. Wyndham Hotels & Resorts, Inc
.,
The hotel line of cases, however, does not answer the question of whether the same
standards apply where a civil claim is asserted under Section 1591(a)(2) against an ICS provider
and thus (arguably) falls within the ambit of Section 230 immunity. This issue was recently
addressed in
Doe v. Kik Interactive, Inc
.,
The court in Kik reasoned as follows:
Significantly, because the hotel defendants were not interactive computer service providers, neither FOSTA nor CDA immunity were considered. The present case presents a different scenario, because Congress – in balancing the needs of protecting children and encouraging “robust Internet communication” – enacted a statute protecting interactive computer service providers from liability for their users’ content and conduct. If it were not for FOSTA, Defendants in this case would be completely immune from liability under the CDA. 47 U.S.C. § 230(c)(5); MySpace ,528 F.3d 413 . To resolve Defendants’ Motion to Dismiss, this Court must consider the extent to which FOSTA has affected the immunity provided by the CDA. Again, FOSTA states that “[n]othing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit ... any claim in a civil action under section 1595 of Title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title .” 47 U.S.C. § 230(e)(5)(A) (emphasis added). Plaintiff argues that as a result of FOSTA, “the exacting standard of ‘actual knowledge’ and ‘overt act’ employed in a criminal prosecution under § 1591 is replaced by [a] ‘constructive knowledge’ standard when a civil recovery is sought under the TVPA.” (DE [29], p. 21). But this argument would have the Court disregard the plain language and structure of FOSTA. “A statute should be interpreted so that no words shall be discarded as meaningless, redundant, or mere surplusage.” United States v. DBB, Inc ., 180 F.3d 1277, 1285 (11th Cir. 1999) (quotation omitted).
Defendants argue that the Congressional history of FOSTA shows
that Congress only intended to create a narrow exception to the CDA
for “openly malicious actors such as Backpage where it was plausible
for a plaintiff to allege actual knowledge and overt participation.” (DE
[33], p. 5) and that a finding of actual knowledge and overt
participation in a venture of sexual trafficking is required to defeat
CDA immunity. This is consistent with the language of FOSTA. By
its terms, FOSTA did not abrogate CDA immunity for all claims
arising from sex trafficking; FOSTA permits civil liability for
websites only “if the conduct underlying the claim constitutes a
violation of section 1591.” And section 1591 requires knowing and
active participation in sex trafficking by the defendants.
Afyare
, 632
Fed. Appx. at 286;
see also Geiss v. Weinstein Co. Holdings, LLC
,
The undersigned respectfully disagrees with the
Kik
court’s analysis. In construing a
statute, the Court starts with the language of the statute.
Bailey v. United States
,
FOSTA consists of two clauses, with the first clause (“[n]othing in this section . . . shall be construed to impair or limit . . . any claim in a civil action under section 1595 of Title 18”) modified by the second clause (“if the conduct underlying the claim constitutes a violation of section 1591 of that title”). 47 U.S.C. § 230(e)(5)(A). The Kik court concluded that the second clause, on its face, not only limits civil claims that fall outside of CDA § 230 immunity to claims asserted under Section 1591 but that it also allows for liability on only a subset of the civil claims that may be brought under Sections 1595 and 1591, namely, those that can meet the more stringent burden that applies to criminal prosecutions under Section 1591. The implication of this reading is that a sex trafficking victim who seeks to impose civil liability on an ICS provider on the basis of beneficiary liability faces a higher burden than a victim of sex trafficking who seeks to impose such liability on other types of defendants. Had Congress intended such a limitation on Section 1595 liability as applied to interactive computer services, it could have clearly stated as much, but it did not do so.
Furthermore, the more natural reading of the second phrase of Section 230(e)(5)(A) is simply that it creates an exemption to Section 230 immunity for civil sex trafficking claims under Section 1591 and not as to other sections of Title 18 that can give rise to civil liability under Section 1595. In particular, Section 1595 is found in Chapter 77 of Title 18, entitled “Peonage, Slavery, and Trafficking in Persons,” and creates civil liability for “[a]n individual who is a victim of a violation of this chapter .” 18 U.S.C. § 1595(a) (emphasis added). As the title of the chapter suggests, it prohibits a host of conduct including “hold[ing] or return[ing] any person to a condition of peonage” (§ 1581), “[e]nticement into slavery” (§ 1583), and “benefit[ing], financially or . . . receiving anything of value, from participation in a venture which has engaged in the providing or obtaining of [forced] labor” (§ 1589). This more straightforward reading does not limit FOSTA’s exemption to a narrow subset of civil sex trafficking claims but rather, makes available to victims of sex trafficking the same civil remedies against an ICS provider under Section 1591(a)(2) as are available in cases involving other types of defendants. The Court finds that this reading is consistent with the broad language used in the first clause of FOSTA as well as the remedial purpose of FOSTA. [4]
Nor does the undersigned find persuasive the Kik court’s finding that the legislative history supports its interpretation of FOSTA. The two isolated statements cited by the Kik court provide little guidance as to the very specific question of statutory interpretation presented here. Further, the parties and amici have pointed to numerous statements in the legislative history, often seeming to support conflicting conclusions, highlighting the risks of relying on statements made prior to passage of a bill to interpret the statute that was actually enacted. Here, the Court concludes that this issue is better resolved on the basis of the language of FOSTA as it fits with the broader statutory framework of the TVPRA.
For these reasons, the Court concludes that Plaintiffs’ Section 1595 claim against Twitter based on alleged violation of Section 1591(a)(2) is not subject to the more stringent requirements that apply to criminal violations of that provision. Having reached that conclusion, the Court now must address whether Plaintiffs have adequately alleged: 1) that Twitter knowingly participated in a venture; 2) that it received a benefit from its participation; and 3) it knew or should have known that Plaintiffs were victims of sex trafficking. a. Participation in a Venture A “venture” is defined as “any group of two or more individuals associated in fact.” 18
U.S.C. § 1591(e)(6). As discussed above, Plaintiffs are not required to allege an “overt act” of
participation in the sex trafficking itself. Nor does “ ‘participation’ under § 1595 . . . require
actual knowledge of participation in the sex trafficking itself.”
M.A
.,
The Court concludes that Plaintiffs’ allegations are sufficient to meet this requirement. In addition to the general allegations that Twitter enables sex trafficking on its platform, see, e.g., FAC ¶¶ 58-59 (alleging Twitter makes it hard for users to report CSAM and has received a lower rating than other platforms for its reporting structure); 61 (“Twitter permits large amounts of human trafficking and commercial sexual exploitation material on its platform, despite having both the ability to monitor it, and actual and/or constructive knowledge of its posting on the platform”); ¶¶ 64-69 (alleging that the number of reports by Twitter to the National Center on Missing and Exploited Children (“NCMEC”) of apparent child sexual abuse material on its platform is low compared to what other platforms report); ¶¶ 74-79 (alleging that Twitter hashtags help users find CSAM and that it rarely removes hashtags it knows are associated with CSAM); ¶¶ 80-84 (alleging that Twitter’s search suggestion feature makes it easier for users to find CSAM), Plaintiffs also include specific allegations that support an inference that Twitter participated in a “venture” involving these Plaintiffs. In particular, the FAC alleges that Twitter was specifically alerted that the Videos contained sexual images of children obtained without their consent on several occasions but either failed or refused to take action. First, John Doe # 1 and his mother both allegedly reported the CSAM through Twitter’s content reporting interface. FAC ¶¶ 110, 112. Further, when Twitter responded to John Doe #1’s complaint by asking for further information, John Doe #1 sent Twitter a copy of his driver’s license (reflecting that he was a minor) and stated in his responses that the Videos had been taken three years before “from harassment and being threatened” and that a police report had been filed. FAC ¶ 114. John Doe #1’s mother allegedly made two more complaints, including one specifically complaining about the user account @StraightBross, which was one of the accounts that provided links to the videos.” FAC ¶ 115. Subsequently, after receiving only form responses, John Doe #1’s mother emailed Twitter to inquire about the status of the complaints. FAC ¶ 119.
Two days later, Twitter allegedly sent John Doe #1 a response stating, “We’ve reviewed court in M.A. found was consistent with its own conclusions.
the content, and didn’t find a violation of our policies, so no action will be taken at this time.” Id . ¶ 120 . John Doe #1 allegedly responded as follows:
What do you mean you don’t see a problem? We both are minors right now and were minors at the time these videos were taken. We both were 13 years of age. We were baited, harassed, and threatened to take these videos that are now being posted without our permission. We did not authorize these videos AT ALL and they need to be taken down. We have a case number with the [Law Enforcement Agency] for these videos and this incident. Please remove this video ASAP and any videos linked to this one. There is a problem with these videos and they are going against my legal rights and they are again at (sic) the law to be on the internet. (capitalized emphasis in original).
FAC ¶ 123. The Videos allegedly remained on Twitter another seven days. FAC ¶ 124. Notably, Plaintiffs also allege that the user account @StraightBross, one of the accounts that allegedly posted the Videos, had been the subject of a citizen complaint in December 2019 alerting Twitter that this account carried links to “OBVIOUS CHILD PORN” but no action was taken on that complaint. FAC ¶ 101. amounting to a tacit agreement with the perpetrators in this case to allow them to post videos and photographs it knew or should have known were related to sex trafficking without blocking their under Section 1595 in support of their beneficiary liability claim against Twitter. accounts or the Videos. Therefore, Plaintiffs have adequately alleged participation in a venture [6] The Court finds that these allegations are sufficient to allege an ongoing pattern of conduct
b. Receipt of a Benefit
“To state a claim under a section 1595(a) beneficiary theory,” Plaintiffs “must allege facts
from which the Court can reasonably infer that” Twitter “knowingly benefit[ted] financially or by
receiving anything of value[.]”
B.M
. at *4. In
B.M.
, the court rejected the defendant’s argument
that the “ ‘benefit’ must derive directly from, and be knowingly received in exchange for,
participating in a sex-trafficking venture[,]” finding that this approach improperly “reads a
requirement for ‘actual knowledge’ of criminal sex trafficking into the civil statute, [and] read[s]
out the ‘should have known’ language.”
Id.
Instead, the court found that “[t]he ‘knowingly
benefit’ element of section 1595 ‘merely requires that Defendant knowingly receive a financial
benefit’ ” from its relationship with the sex trafficker. (citing
H.H. v. G6 Hosp
., LLC, No.
2:19-CV-755,
First, contrary to Twitter’s repeated assertions, the FAC contains detailed allegations about how Twitter monetizes content, including CSAM, through advertising, sale of access to its API, and data collection. FAC ¶¶ 25, 30-41, 50-54. It further alleges that searching for hashtags that are known to relate to CSAM brings up promoted links and advertisements, offering a screenshot of advertising that appeared in connection with one such hashtag. FAC ¶ 76. Plaintiffs also specifically allege that the Videos of Plaintiffs were “monetized by Twitter and it receive financial benefit from [their] distribution on its platform.” FAC ¶ 196. While Twitter dismisses this allegation as conclusory, it is supported by allegation that the Videos were “viewed at least 167,000 times and retweeted 2,220 times for additional views,” FAC ¶195, and that “[t]he videos remained live approximately another seven days, resulting in substantially more views and retweets.” FAC ¶ 125. Read together, these allegations support a plausible inference that the Videos of Plaintiffs generated advertising and attracted users, both of which benefited Twitter.
The Court is not persuaded that either
Geiss
or
Kolbek
, cited by Twitter, requires a
contrary result. In
Geiss
, the court concluded that officers who worked at the company of film
producer Harvey Weinstein could not be held liable on the basis of beneficiary liability under
Section 1591(a)(2) simply because they received a benefit from working for the company where
that benefit was unrelated to any conduct that facilitated the alleged sex trafficking by Weinstein.
Twitter’s reliance on
Kolbek v. Twenty First Century Holiness Tabernacle Church, Inc
.,
No. 10-CV-4124,
Therefore, the Court concludes that Plaintiffs’ have adequately alleged receipt of a benefit for the purposes of their claim for beneficiary liability.
c. Knew or Should Have Known the Venture Was Engaged in Trafficking
While Twitter need not have actual knowledge of the sex trafficking in order to have
participated in the sex trafficking venture for the purposes of Section 1595, Plaintiffs must allege
at least that Twitter knew or should have known that Plaintiffs were the victims of sex trafficking
at the hands of users who posted the content on Twitter.
See B.M.
,
Before addressing Plaintiffs’ remaining claims, the Court addresses Twitter’s argument
that when Congress enacted FOSTA, it intended to exempt from Section 230 immunity
only
claims asserted under Sections 1591 and 1595. This was the conclusion of the court in
Kik
, which
found that the “plain language of [FOSTA] removes immunity only for conduct that violates 18
U.S.C. § 1591.”
D. Claim Three (18 U.S.C. §§ 2258A and 2258B)
Section 2258A establishes a duty on the part of electronic communication service providers to report to the National Center for Missing & Exploited Children (“NCMEC”) “facts or circumstances from which there is an apparent violation of section 2251, 2251A, 2252, 2252A, 2252B, or 2260 that involves child pornography.” 18 U.S.C. § 2258A; see also 18 U.S.C. § 2258E (defining “provider”, “NCMEC”). Section 2552A, in turn, makes it a criminal offense to, inter alia , knowingly mail or transport, receive, distribute or reproduce child pornography. (As discussed above, Claim Four is based, in part, on Twitter’s alleged violation of that provision.) Section 2258B bars the imposition of liability on a provider in connection with its performance of the duty established under Section 2258A except where the provider “(1) engaged in intentional misconduct; or (2) acted, or failed to act-- (A) with actual malice; (B) with reckless disregard to a substantial risk of causing physical injury without legal justification; or (C) for a purpose unrelated to the performance of any responsibility or function under [Section 2258B], sections 2258A, 2258C, 2702, or 2703.” 18 U.S.C. § 2258B.
Although Section 2258A establishes a duty to report under criminal law, that section does
not purport to establish a private right of action. Rather, it provides that “knowing and willful
failure” to make a report will result in the imposition of fines on the provider of up to $300,000.
See
18 U.S.C. 2258A(e). Section 2258B creates a safe harbor that prohibits the imposition of
criminal or civil liability based on failure to report unless the failure was the result of intentional
or reckless conduct. Based on their plain language, neither of these provisions reflects a clear
intent on the part of Congress to establish a private right of action to enforce the reporting
requirement found in Section 2258A.
See Abcarian v. Levine
,
E. Claim Four (Personal Injuries Related To Sex Trafficking And Receipt And Distribution Of Child Pornography Under 18 U.S.C. §§ 2252A, and 2255) [7] Section 2255 creates a civil remedy for violations of certain sections of the criminal code, including Sections 2252A, providing as follows:
(a) In general. Any person who, while a minor, was a victim of a violation of section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains or liquidated damages in the amount of $150,000, and the cost of the action, including reasonable attorney’s fees and other litigation costs reasonably incurred. The court may also award punitive damages and such other preliminary and equitable relief as the court determines to be appropriate.
18 U.S.C. § 2255(a). Twitter does not argue that Plaintiffs have failed to allege a violation of Section 2252A but contend this claim is barred by CDA § 230 immunity. The Court agrees.
While there is not a great deal of authority on this question, at least two courts have
concluded that under Section 230, ICSs are immune from civil liability under 2252A and 2255.
See Doe v. Bates,
No. 5:05-CV-91-DF-CMC,
The
Zeran
court . . . noted the Congressional purpose of removing
disincentives to self-regulation by internet service providers. If
internet service providers such as Yahoo! could be liable for
reviewing materials but ultimately deciding to allow them, they would
likely chose not to regulate at all. Further, even simply responding to
notices of potentially obscene materials would not be feasible because
the sheer number of postings on interactive computer services would
create an impossible burden in the Internet context. To the extent an
internet service provider actually makes choices about its content,
without immunity they would be faced with ceaseless choices of
suppressing controversial speech or sustaining prohibitive liability.
While the facts of a child pornography case such as this one may be
highly offensive, Congress has decided that the parties to be punished
and deterred are not the internet service providers but rather are those
who created and posted the illegal material[.]
[O]nce a computer service provider receives notice of a potentially defamatory posting, it is thrust into the role of a traditional publisher. The computer service provider must decide whether to publish, edit, or withdraw the posting. In this respect, Zeran seeks to impose liability on AOL for assuming the role for which § 230 specifically proscribes liability—the publisher role.
Id.
Plaintiffs argue that
Bates
was wrongly decided because
Zeran
involved defamatory
speech rather than child pornography. According to Plaintiffs, unlike defamatory speech, child
pornography “is at once contraband, beyond the covering of First Amendment speech protection,
evidence of criminal child abuse, and an ongoing sexual crime against a child” and therefore,
requiring ICS providers to remove pornography does not require them to exercise “traditional
editorial functions.” Opposition at 23. While this argument has some force, it does not square
with Ninth Circuit authority, which has found that “[t]o avoid chilling speech, Congress ‘made a
policy choice . . . not to deter harmful online speech through the separate route of imposing tort
liability on companies that serve as intermediaries for other parties’ potentially injurious
messages.’ ”
Gonzalez v. Google LLC
,
The undersigned therefore finds the reasoning and holding of Bates and M.A. ex rel. P.K. v. Vill. Voice Media Holdings on this question to be in line with Ninth Circuit authority and concludes that immunity under Section 230 is not defeated by the fact that the third-party content at issue is illegal child pornography. Therefore, the Court concludes that this claim fails under Section 230.
F. Plaintiffs’ State Law Claims
1. Claim Five (California Products Liability)
Plaintiffs’ products liability claim is based on the theory that Twitter’s platform is
unreasonably dangerous and therefore defective because it is designed so as to make it easy for
child predators and sex traffickers to quickly disseminate CSAM on a wide scale while making it
difficult to report or block the dissemination of such material. Plaintiffs attempt to avoid Section
230 on the ground that the claim is not based on Twitter’s conduct as a publisher of information
but instead, on a defective product, citing
Lemmon v. Snap, Inc
.,
The plaintiffs in Lemmon brought a products liability claim based on negligent design against Snap, the company that owns Snapchat, and Snap asserted that it was entitled to immunity under Section 230. at 1090. The district court agreed but the Ninth Circuit reversed, finding that the plaintiffs’ claims did not treat the defendant as a publisher or speaker. at 1091. The court reasoned as follows: 1
2 It is . . . apparent that the Parents’ amended complaint does not seek to hold Snap liable for its conduct as a publisher or speaker. Their 3 negligent design lawsuit treats Snap as a products manufacturer, accusing it of negligently designing a product (Snapchat) with a 4 defect (the interplay between Snapchat’s reward system and the Speed Filter). Thus, the duty that Snap allegedly violated “springs 5 from” its distinct capacity as a product designer. Barnes , 570 F.3d at
1107.
This is further evidenced by the fact that Snap could have
satisfied its “alleged obligation”—to take reasonable measures to
design a product more useful than it was foreseeably dangerous—
without altering the content that Snapchat’s users generate
.
Internet Brands
,
product. . . . Though publishing content is “a but-for cause of just about everything” Snap is involved in, that does not mean that the Parents’ claim, specifically, seeks to hold Snap responsible in its capacity as a “publisher or speaker.” at 1092 (emphasis added). Here, as in Lemmon , Plaintiffs’ products liability claim is based on the allegation that the design of the Twitter platform is unreasonably dangerous. The facts here differ, however, from those in Lemmon because the nature of the alleged design flaw in this case – and the harm that is alleged to flow from that flaw – is directly related to the posting of third-party content on Twitter. In particular, Plaintiffs allege that Twitter’s design, which is aimed at “enabling its users to
disseminate information very quickly to large numbers of people” through such features as hashtags and algorithms, also enables “sex traffickers to distribute CSAM on a massive scale.” FAC ¶¶ 179-181. Conversely, they allege, Twitter is not “designed to enable its users to easily report CSAM, nor is it designed so that CSAM is immediately blocked pending review when reported.” ¶ 182. Nor does Twitter “consistently deploy IP blocking, or other measures, to prevent users suspended by Twitter for disseminating CSAM from opening new accounts under different names[,]” Plaintiffs allege. These flaws, in essence, seek to impose liability on Twitter based on how well Twitter has designed its platform to prevent the posting of third-party content containing child pornography and to remove that content after it is posted. In other words, to meet the obligation Plaintiffs seek to impose on Twitter on this claim, Twitter would have to alter the content posted by its users, in contrast to the design defect alleged in Lemmon . Therefore, the Court concludes that Lemmon is not on point and that Plaintiffs’ products liability claim fails on the basis that Twitter is entitled to immunity as to that claim under Section 230 immunity. [9]
2. Claims Six through Nine (Negligence Claims) Twitter challenges all of Plaintiffs’ negligence claims on the grounds that it is immune from liability on those claims under Section 230. It further asserts that the negligence per se and negligent infliction of emotional distress claims (Claims Eight and Nine) are not independent causes of action and that the remaining negligence claims (Claims Six and Seven) fail because Twitter does not owe Plaintiffs any duty. The Court finds that these claims fall within the scope of Section 230 and therefore does not reach Twitter’s remaining arguments.
The essence of these claims is that Twitter breached a duty to Plaintiffs – and violated
various criminal statutes –by failing to remove the Videos after being notified of them and instead
allowing them to be broadly disseminated on Twitter. These claims seek to treat Twitter as a
publisher of information, which is prohibited under Section 230.
See In re Facebook, Inc., No. 20-
0434,
3. Claim Ten (Distribution of Private, Sexually Explicit Material Under Cal. Civ. Code section 1708.85)
California Civil Code section 1708.85(a) provides:
A private cause of action lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other's consent, if (1) the person knew that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration, and (3) the other person suffers general or special damages as described in Section 48a.
Cal. Civ. Code section 1708.85(a). Section 1708.85 exempts from liability, however, a “person distributing material under subdivision (a)” where “[t]he distributed material was previously distributed by another person.” Cal. Civ. Code section 1708.85(c)(6). Based on the plain language of these provisions, the Court concludes Plaintiffs have failed to state a claim.
Liability under section 1708.85(a) requires that Twitter
intentionally
distributed the
Videos. Even assuming that Twitter’s conduct amounted to intentional distribution once it was
put on notice of the Videos, the allegations in the FAC make clear that at that point these Videos
had already been posted by “another person,” namely, the owners of the user handles
@StraightBross and @fitmalesblog.
See
FAC ¶¶ 89, 91, 99. Plaintiffs have not cited any contrary
authority or even addressed Twitter’s argument in their Opposition. Therefore, the Court
concludes that Plaintiffs fail to state a claim under section 1708.85(a). Further, to the extent that
this claim seeks to hold Twitter liable for failing to remove third-party content from its platform,
the Court concludes that the claim is barred under CDA § 230 because it treats Twitter as a
publisher.
4. Claim Eleven (Intrusion Into Private Affairs)
The tort of intrusion into private affairs has two elements: “(1) intrusion into a private
place, conversation or matter, (2) in a manner highly offensive to a reasonable person.”
Shulman v.
Grp. W Prods., Inc
.,
Twitter does not argue in the Motion that Plaintiffs fail to state a claim for intrusion into private affairs and therefore, the Court assumes that Plaintiffs adequately allege such a claim. Nonetheless, the basis for this claim is Twitter’s “role as a ‘republisher’ of material posted by a third party,” and therefore, the claim is barred by CDA § 230. Caraccioli v. Facebook, Inc ., 700 F. App’x 588, 590 (9th Cir. 2017) (holding that claim against Facebook for intrusion into private affairs based on Facebook’s refusal to remove private photos and videos of the plaintiff from Facebook was barred under Section 230).
5. Claim Twelve (Invasion of Privacy Under California Constitution)
To establish an invasion of privacy claim under the California Constitution, a plaintiff
must demonstrate three elements: “(1) a legally protected privacy interest; (2) a reasonable
expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious
invasion of privacy.”
Hill v. Nat’l Collegiate Athletic Ass’n
,
6. Claim Thirteen (UCL Claim) Twitter asserts that Plaintiffs do not have standing to assert their UCL claim and that they fail to state a claim because they have not alleged any statutory violation or, to the extent the claim is based on alleged misrepresentations by Twitter, any reliance on those misrepresentations. It also contends the claim is barred by CDA § 230. The Court assumes without deciding that Plaintiffs have adequately alleged standing. It also finds that Plaintiffs have adequately alleged an “unlawful” practice under the UCL for the same reasons it finds that Plaintiffs have stated a claim for beneficiary liability under Section 1595 and 1591(a)(2). The gravamen of the UCL claim, however, is that Twitter engaged in an unlawful and unfair practice by failing to ensure that the Videos were blocked from Twitter or at least, removed promptly. As such, this claim seeks to impose liability on Twitter as a publisher of third-party content and is therefore barred by Section 230.
IV. CONCLUSION
For the reasons stated below, the Motion is DENIED as to Plaintiffs’ TVPRA claim based on beneficiary liability (Claim Two). The Motion is GRANTED as to Plaintiffs’ remaining claims, which are dismissed with prejudice.
IT IS SO ORDERED.
Dated: August 19, 2021
______________________________________ JOSEPH C. SPERO Chief Magistrate Judge
Notes
[1] The parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28 28 U.S.C. § 636(c).
[2] Here, it is undisputed that Twitter is an interactive computer service provider and that the Videos 28 were provided by another information content provider.
[3] Twitter misrepresents the holding of B.M. when it states in its briefs that the court in that case followed Afyare . See Motion at 13 (citing B.M. with parenthetical stating that the case “analyz[ed] the elements of a Section 1591 violation and follow[ed] Afyare ”); see also Reply at 6 n. 5 (stating that “ Afyare is the seminal decision interpreting the term ‘participation in a venture’ under Section 1591(a)(2) and its reasoning has been cited approvingly by numerous courts, including this Court” and citing B.M. ). In B.M. , Judge Freeman expressly held that while the prosecution in a criminal case brought under Section 1591(a)(2) must under Afyare “prove that the defendant actually participated in a sex-trafficking venture[,]” the standard from criminal cases does not apply to civil claims under Section 1595.
[4] At oral argument, Twitter argued, for the first time, that the narrow interpretation of FOSTA
adopted in
Kik
is also consistent with 47 U.S.C. § 230(e)(5)(B), which provides that Section 230
should not be construed to “impair or limit . . . any charge in a criminal prosecution brought under
State law
if the conduct underlying the charge would constitute a violation of section 1591 of Title
” 47 U.S.C. § 230(e)(5)(B) (emphasis added). The emphasized phrase mirrors the one used in
47 U.S.C. § 230(e)(5)(A), permitting claims under Section 1595 “if the conduct underlying the
18
claim constitutes a violation of section 1591 of that title.” According to Twitter, to the extent that
subsection (B) presumably was intended to exempt state law criminal prosecutions only if the
19
higher
mens rea
requirement of Section 1591 is satisfied, the same meaning must be given to this
phrase in subsection (A). Thus, Twitter contends, subsection (A) must limit civil liability under
20
Section 1595 to claims that meet the requirements for criminal liability under Section 1591. The
Court does not find this argument persuasive. First, the Court notes that the
Kik
court did not rely
21
on this line of reasoning. More importantly, there is no authority one way or the other as to
whether subsection (B) permits a state law criminal prosecution for sex trafficking to be brought
22
against an ICS provider under a statute with a less stringent
mens rea
requirement than has been
found to apply to Section 1591(a) claims. Thus, the language of subsection (B) provides little
23
guidance in resolving the proper construction of subsection (A). Finally, as the court in
M.A.
explained, there are exceptions to the general presumption that words have the same meaning in a
24
statute.
[5] In the Motion, Twitter misstates the facts of
M.A.
, stating that in that case “the court found a
27
‘venture’ because the plaintiff alleged she saw the beneficiary defendant and her trafficker
exchanging high-fives . . . while speaking about ‘getting this thing going again.’” Motion at 13.
28
Actually, these are the facts of
Ricchio v. McLean
,
[6] The Court rejects Twitter’s argument that the venture was already over when the Videos were posted on Twitter and therefore Plaintiffs have not adequately alleged that Twitter knew that Plaintiffs would, in the future, be victims of sex trafficking as a result of Twitter’s conduct. At oral argument, Twitter conceded that the posting of child pornography is a commercial sex act. Thus, regardless of when the Videos were created, the allegations that the Videos were being retweeted on a massive scale while they remained on the Twitter platform raise a plausible inference that Twitter’s failure to remove the Videos would result in future commercial sex trafficking.
[7] Although the FAC also relies on 18 U.S.C. § 1591 in support of Claim Four, Plaintiffs addressed Twitter’s argument only with respect to the alleged violation of 18 U.S.C. § 2252A. Therefore, the Court understands this claim to be based only on Sections 2252A and not on section 1591.
[8] Plaintiffs also point to CDA § 230(e)(1) in support of their argument that their claim under 22 Section 2255 is exempt from immunity. Opposition at 24. As discussed above, that section provides that the immunity established under subsection (a) “shall [not] be construed to impair the 23 enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal criminal statute.” While Section 24 2255, which created civil liability for certain criminal offenses, is contained in chapter 110, it was enacted two years after Section 230. Thus, at the time Congress enacted Section 230(e)(1), the 25 exemption it created in that section applied only to criminal enforcement of the provisions in chapter 110. Further, while Plaintiffs suggest that the bill adopting section 2255, the Protection of Children from Sex Predators Act of 1998, PL 105–314, 112 Stat 2974 (1998), reflected an intent 26 on the part of Congress to abrogate Section 230 immunity as to ICS providers with respect to civil 27 claims asserted under Section 2255, they have pointed to no language in Section 2255 or any specific legislative history to support that conclusion. Therefore, the Court concludes that CDA § 28 230(e)(1) does not exempt Plaintiffs’ claim under Section 2255 from immunity under Section 230.
[9] The Court assumes without deciding that Plaintiffs’ products liability claim is otherwise 28 adequately alleged.